Politics & Policy

Taking Roberts’s Rep

Is the Supreme Court nominee guilty of takings-clause treason?

Does John Roberts care about constitutional protection of property rights? James Burling of the California-based Pacific Legal Foundation apparently believes he does not. In an August 19 essay on the organization’s website, titled “John Roberts: A Supreme Property Rights Disaster in the Making,” Burling says that “Justice O’Connor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind.”

The Burling piece does not merely raise questions about where Roberts will be on the issue, or suggest that the record is uncomfortably ambiguous. Burling professes knowledge on the subject: “After a term marked by the Supreme Court’s utter contempt for property rights, those of us who happen to think there is something special about allowing old widows to keep their homes were not prepared for an even more bitter defeat. Yet, that is what President Bush handed us with the nomination of John Roberts.”

These are serious charges, declaring that John Roberts will toss old widows on the street and leave the rest of us property owners twisting in the wind. One would expect, therefore, some pretty uncontrovertible evidence. So, what does Mr. Burling proffer for our consideration?

Exhibit A is the fact that Roberts, as a private lawyer, argued against landowners on behalf of the regional government planning agency in the Lake Tahoe case before the Supreme Court in 2002, which addressed the question whether a 30-year moratorium on property development constituted a per se taking under the U.S. Constitution. And, here’s the kicker: Burling reveals that Roberts argued the case for a “substantially reduced fee,” implying that he just wasn’t a typical big law firm “hired gun.”

Exhibit B is a 1978 Harvard Law Review note written by Roberts as a law student, in which Burling says that Roberts favors balancing tests in evaluating whether a compensable taking has occurred under the Fifth Amendment. As was the practice, his note was an unsigned piece on developments in the law.

A Full Picture

To be sure, these two pieces from Roberts’s past are relevant considerations. And, Mr. Burling is free to draw whatever conclusions he wishes from these parts of the Roberts record. But, when asking others to draw serious, negative conclusions about an individual’s commitment to our Constitution, it is only fair that the entire record be presented for consideration.

Roberts argued the Lake Tahoe case at the request of Georgetown Law Professor Richard Lazarus, a longtime friend and former roommate. Upon receiving an argument date, Lazarus apparently discovered that a serious conflict made it impossible for him to appear before the Court, and asked Roberts to step in. We probably will never know for sure why Roberts decided to argue the case for a “substantially reduced fee”–possibly his friendship with Lazarus was the reason. Maybe Lazarus had agreed to a fee much less than typical for a private practitioner (as academics will do), and, in covering for his friend, Roberts had to step into that previous arrangement. Or perhaps it was the mere fact that Supreme Court practitioners not infrequently take cases on behalf of government entities for a reduced fee as a means of getting those rare, intensely competitive opportunities to appear before the nation’s highest court. These are certainly relevant considerations in trying John Roberts for takings-clause treason, but they appear nowhere in the Burling analysis.

Noticeably absent from the Burling essay as well is any clear articulation of what the issue was before the Court in the Lake Tahoe case. The Court did not decide–and was not asked to decide–whether any taking had occurred in the case. Rather, the only issue before the Court was whether a temporary deprivation of the use of property was a taking per se. The attorneys representing the landowners, hoping to use this as a test case, decided to argue that the Tahoe moratorium was a taking under any circumstances, as opposed to a regulatory taking that requires an assessment of the government’s interests in regulation against the property owner’s interests. Indeed, those who actually watched the oral argument at the Court will recall that there was a good bit of disagreement amongst conservatives over the strategy of the landowner’s attorney to push the takings point to the extreme–making almost any lapse of time during which development might be temporarily put on hold as a compensable taking. John Roberts did not, then, argue that the deprivation was a taking under all circumstances, only that it was not a taking under the standard advanced by the property owners. From this argument, we really have no idea whether Roberts would have sided with the property owners and agreed that the government’s conduct was unlawful. These might be some important considerations in deciding whether Roberts would allow government to turn out widows from their homes.

Those who have not had the opportunity to scour Judge Roberts’s record might not know of the factors which suggest Roberts might not take a hostile view toward property rights. Roberts argued in Lujan v. Defenders of Wildlife, for example, that environmentalists have to meet a heavy burden to get their day in court. That goes a long way toward protecting the property rights and settled expectations of landowners. And, as a circuit judge, John Roberts took issue with a decision that empowered the federal government to prohibit a developer’s movement of a fence because of the presence of a purely local species of frog. Judge Roberts recognized, in short, that the Endangered Species Act probably should have some meaningful brakes. In omitting these two cases, did Burling decide for the reader that they were not relevant? Why not give you and me the benefit of weighing all the facts on our own?

There are a number of possible explanations other than deception for why all this other information was not disclosed and addressed. Knowing Burling personally and the outstanding as well as indispensable work that he and the Pacific Legal Foundation undertake in defense of property rights, I reject any suggestion that the omission here was malicious or duplicitous. We all should assume that they confronted this issue precisely because of their strong convictions, which have served us well, and perhaps space constraints made it difficult to tell the whole story. But, then again, had Burling used fewer adverbs and rhetorical flourishes aimed at instilling fear, perhaps there would have been a small space for greater thoroughness and a greater opportunity for informed dialogue.

Leonard A. Leo is currently on leave as executive vice president of the Federalist Society.

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